Dogs Used in the Investigation

Four types of dogs were used in this investigation: 

Scent dogs, also called K-9s (canines), can detect human scent, which, whether dead or alive is the same until the body begins to decay.  K-9s were used in the neighborhood and park on the night of the 24th and during the next day.  Primarily, their purpose was to find an injured Laci.

Trailing dogs, also called bloodhounds, can pick up the most recent trail of the missing person, having been given the person's scent from a personal item.  Trailing dogs were used the night of December 26 to trail Laci's route from 523 Covena to the warehouse, on December 28 at the Berkeley Marina, and on January 4 to do a drop trail along Hwy 132. 

Cadaver dogs can pick up decaying human scent, and were used in the search warrant on December 27 at both 523 Covena and the Warehouse. 

Water cadaver dogs can pick up decaying human scent in water, and were used at several locations, including the San Francisco Bay as early as December 28. 

The Defense filed a motion to exclude all dog testimony from the Preliminary hearing, but the State withdrew its intent to produce testimony at that time.  Therefore, the Motion became part of the Pre-Trial evidentiary hearings.  Delucchi ruled to allow only a portion of the evidence, Kimble's alert at the Berkeley Marina, because it was corroborated by where the bodies were found -- Richmond Jetty and Point Isabel.  Even though no evidence had been presented in any Court of Law to show that Conner and Laci washed up from where Scott went fishing, Delucchi drew the conclusion that because they washed up where they did, and because Scott admitted to being at the Berkeley Marina on December 24, that the "the inference the jury can draw is that Miss Peterson somehow or other was at the marina on or about the day she disappeared."  The rest of the dog evidence Delucchi described as "contradictory" and "lacks a certain degree of certitude" making the results "inconclusive."

Delucchi's ruling was grossly unjust.  He allowed in the evidence that pointed the finger at Scott, but disallowed the evidence that proved his innocence.  The rest of the dog evidence was contradictory and inconclusive simply because the dogs did not trail Laci as expected -- Merlin did not go from 523 Covena to the warehouse, as expected, but to the Airport District, very close to where Steve Todd and Donald Pearce lived, and where much of the stolen goods from the Medina burglary were recovered.  Adam Tenbrink, Mr. R, and Diane Jackson all confirmed that the Medina burglary took place on December 24, about the time Laci disappeared.  Medina burglary  In addition, Merlin could not trail Laci to the warehouse -- he could not even find the warehouse.  When put at an intersection nearby, he went in the opposite direction. 

The cadaver dog Twist didn't alert in any of the crime scenes, even though Laci would have been dead long enough to have given off cadaver scent.  523 Covena -- no alert; the blue tarp -- no alert; the boat cover -- no alert; the boat -- no alert; the warehouse -- no alert.  Brocchini didn't have Anderson put Twist into the Ford truck, probably because he didn't want another no-alert to go on the record.

As for Trimble's alert at the Berkeley Marina, Ronald Seitz, another dog handler, had his trailing dog at the Marina at the same time, and his dog did not alert.  Trimble's skills came under attack during the Trial.  Anderson had not disclosed a tape of Trimble failing on a vehicle-trailing exercise during the Pre-Trial hearings.  Geragos subpoenaed the tape and played it during the Trial. 

Scent dogs

 

When Officer David Corder, a member of the K-9 dog unit, came on duty at 6 am, he was told they had been searching the park through the night, and asked to use his K-9 to search the park and surrounding areas. Officer Gonzalez had been in the park all night with his K-9 and told Corder what areas had already been searched. He (without the dog), Officer Fisher, and several other officers searched some of the streets and alleyways around 500 Covena. They started at intersection of Covena and Edgebrook and walked the front yards all the way down Highland. They actually walked back into some of the yards to see if someone had gone back there and was injured, but did not go into any of the houses or backyards. They came back and went through the alley, which runs behind Highland, came back out Santa Barbara, down Encina, and then one block north on Santa Barbara, Santa Cruz, Rowland and Covena, and down one block, which is Roble, in that area. They went back to area where Covena meets the park and searched areas difficult for people to get into. He took the dog along the southern edge of the park, that joins backyards with lots of shrubbery and bushes. The dog is trained to search out human scent. They searched eastbound all along the southern edge to where El Vista crosses the park. He worked the dog along the southern edge of the creek bed, whatever brush was safe to work, all the way to Kewin Park. He noticed quite a bit of water in the creek, and some deep spots, so he requested Sgt. Beffa to have the fire department search with their raft or zodiac. Beffa and his team entered the creek near the tennis courts and searched all the way to Kewin park. Corder then resumed his dog search along the southern edge of the park in Kewin Park back to the foot path at Covena.

 

During his search, Corder saw some officers talking to some transients in the hospital area, below Scenic a little west of where it intersects with Coffee. There is a path that leads from the foot bridge in the park to Scenic, and it’s 50-75 yards from the bridge to Scenic.

 

7:20 pm Scott called Brocchini to ask him if they were using cadaver dogs to look for Laci in Dry Creek Park. Brocchini told Scott he hadn't considered her being dead yet, so they hadn't used cadaver dogs. They talked for 5 minutes.  Since Scent dogs can also find dead humans, those who knew they were using K-9s may not have known the difference between a K-9 and a cadaver dog. 

 

 

Trailing Dogs

 

Trailing dog evidence was heard during the Pre-Trial Evidentiary Hearings.  Three witnesses testified about their qualifications as a handler, their dog's qualifications, their specific assignments for this investigation and their results.  Anderson and Boyer also testified at the trial.  In addition, Ronald Seitz, another dog who also brought a trailing dog to the Marina on December 28, testified as a witness for the Defendant at the trial.

 

Cindee Valentin, Merlin

Eloise Anderson, Trimble

Christopher Boyer, Captain of the Search & Rescue Team

Officer Rick Applegate, MPD

Ronald Seitz, Dog Handler

 

Cindee Valentin [Testified February 24, 2004]

This evidence was not allowed in the trial by Delucchi because it was not corroborated by other evidence.  This outline provides an overall review of her testimony.

 

 

Much exonerating evidence came from Valentin's testimony.  Not only did Merlin lead Valentin to the Gallo Winery, very near the airport district, but Merlin could not track from the house to the warehouse.  In fact, Merlin couldn't find the warehouse at all.  This was a critical element in the State's theory.  This testimony discloses just how much effort Brocchini made to find a trail to the warehouse.

 

Pat Harris: And, in fact, when the dog, Merlin, was deposited, deposited at Kansas and Emerald ‑‑
Cindee Valentin: Uh, huh.
Pat Harris: the dog went in the opposite direction, didn't he?
Cindee Valentin: Yes.
Pat Harris: In fact, the dog,

Cindee Valentin: Directly opposite.
>>>>>>>
Pat Harris: The purpose of the search was to find the warehouse, wasn't it?
Cindee Valentin: Yes.
Pat Harris: You didn't find the warehouse, did you?
Cindee Valentin: That's correct.
Pat Harris: In fact, you found a storage yard that was in the opposite direction of the warehouse?
Cindee Valentin: That's correct.
Pat Harris: The search failed, didn't it?
Cindee Valentin: Yes.
........................
Pat Harris: Okay. Having failed to find the warehouse with the dog, Detective Brocchini then asked you just to pick up the dog and take it to the warehouse, didn't he?

Eloise Anderson [Testified February 24-25, August 31 & September 1]

The evidence from Trimble's activity at the Berkeley Marina was admitted into evidence by Delucchi.  This summary is from the Pre-Trial testimony.

 

During her trial testimony, Geragos showed a video of Trimble becoming very confused during a vehicle trailing exercise.  Anderson had not previously disclosed the video of that failed exercise, and Geragos had to subpoena it:

GERAGOS: Okay. Well, at the time that Mr. Kopp asked you about this in February, he, you specifically said the trailing exercise you did not include in those reports was the time when your dog was asked to trail a vehicle trail and failed; isn't that right? Do you remember him asking you that?
ANDERSON: Yes, and I believe I said I don't believe so.
GERAGOS: You said "I don't recall --"
ANDERSON: Or I don't think so, or I don't recall.
GERAGOS: I'll, you want me to read it?
ANDERSON: Please.
GERAGOS: "I don't recall an exercise where she was asked to trail, other than the one that's in her records." Is that what you testified to?
ANDERSON: If that's what it says, that's what I testified to.
GERAGOS: Referring to page 1544.
ANDERSON: Okay.
GERAGOS: Okay. Now, specifically there was no mention of this videotape in any of your records; is that correct?
ANDERSON: That's correct.
GERAGOS: Okay. The way that this videotape, and you had this videotape, didn't you?
ANDERSON: I found out when I went home, after I testified, that I had it. I didn't think I had it at the time.
GERAGOS: Okay. And the reason you had it was that Mr. Rebmann had mailed the videotape to you, correct?
ANDERSON: That's correct. And I didn't think that my dog was on it, so I never looked at it.
>>>>>

GERAGOS: Now, when did you call the district attorney about this?
ANDERSON: I don't recall. It was after February.
GERAGOS: Okay. It was after February. Wasn't it when I executed a subpoena on Contra Costa on August 3rd? Didn't you call the DA, of this month, on August 4th, and tell them Wait a second, I got a tape?
ANDERSON: No.
GERAGOS: You didn't call them on August 4th?
ANDERSON: No, I didn't. Well, I don't, I don't know who might have called them on August 4th, but I had the tape before this month.
GERAGOS: You never before –
ANDERSON: In fact, I turned this tape over to the sheriff's department in March or April. I believe it was March.
GERAGOS: Okay. Now, did you know that I had executed a subpoena on Contra Costa on August 3rd for all of the records? August 3rd of this month?
ANDERSON: That's correct.
>>>

GERAGOS: Okay. That's where she circled back to you because she lost the scent as soon as the person got in the vehicle, correct?
ANDERSON: Incorrect.
GERAGOS: Okay. Well, she didn't follow the direction the vehicle went in, did she?
ANDERSON: According to what I was told after the fact of where the vehicle went, she did follow the direction of the vehicle.
GERAGOS: Oh, and who told you that? Was it Mr. Rebmann?
ANDERSON: No. I believe it was the people that drove, the subject and her husband.
GERAGOS: Mr. Rebmann told you specifically that the dog had not followed the vehicle trail and the dog had failed, and, as he had expected, that the vehicle, that your dog could not do vehicle trailing; isn't that what he told you?
ANDERSON: No, that is not what he told me.

 

 

Christopher Boyer, Captain of the Search & Rescue Team  [Testified February 25-26, August 30-31]

 

Particularly important exonerating evidence came out in Boyer's testimony, that the scent article used to trail Laci from the warehouse to the Berkeley Marina and at the Marina (the only "hit" by a trailing dog) was very likely handled by Scott.  No "missing member" test was done with the sunglasses. 

BOYER: He said no, she normally left the back door unlocked.
D. HARRIS: Did you ask about her keys?
BOYER: Yes, sir. I asked where her keys were.
D. HARRIS: And his response?
BOYER: He said that he took them out of her purse to look in her car. And then a Modesto detective added that they had them at that time. Meaning Modesto Police Department had custody of the keys at that time.
D. HARRIS: And did you ask him another question?
BOYER: Yes, sir. My last question was when did she, when did he
report her missing.
D. HARRIS: And his response?
BOYER: "Around 6:00 p.m., after I called her parents."
 

Not only was Scott handling items from the purse, but so was Brocchini.  Brocchini had other items of Laci's in his possession, too, before the trailing event at the Marina on December 28 and the trailing event from the warehouse to the Marina on January 4. 

 

Any doubts that the dogs were trailing Scott, not Laci, should be dispelled by Applegate's tetimony.

 

 

Officer Rick Applegate, MPD,  [Testified

 

January 4, 2003

That appears to be the conclusion reached by Delucchi.  His refusal to let this exonerating evidence into the trial, while allowing the single alert by Trimble at the Marina, which was contradicted by the failure of Seitz' dog to alert, should be reversible error. 

 

Ronald Seitz, Dog Handler [Testified October 20]

 

Seitz, a member of CARDA and Chief of the Alameda County Search and Rescue Team, was called by CARDA to participate in the searches using dogs at the Berkeley Marina on December 28.  His dog TJ, like Anderson's Trimble, is a trailing dog.  Given the choice of the sunglasses case and the pink slipper to use as the scent article, he chose the slipper.  He said glass cases tend to be handled more by other family members, whereas slippers are not.  He worked his dog in the area above the launch ramp for about 1-1.5 minutes, and the dog did not pick up a scent.  The discussion about scent theory and different dog's abilities sometimes was quite convoluted, discussing possibilities of cross-contamination and ability to do a vehicle trail.  Seitz said even the best dogs have only about an 80% accuracy and readily admitted that either his or Anderson's dog, which did alert on one of the launch ramps, could have been right. 

 

Somehow the information that his dog did not alert at the Berkeley marina (on the same day that Eloise Anderson's dog supposedly alerted) did not make its way into the discovery. The MPD detectives never requested a report from Seitz which would have been the procedure. The information in the officer's report from Dec 28 was hidden. During the trial after Jensen interviewed Seitz the officer's report was discovered. But there was no report from Seitz because one was never requested.

Christopher Boyer-Pre Trial
P. HARRIS: And did he ask you to, did you ask him to write a report on this?
BOYER: No, sir. There's a, I believe CARDA has a standard procedure. They're a different agency. He has his own procedures and standard operating procedures to do that. I can't tell him to write a report for that. He's supposed to do that, and then I can request it through state OES to have a copy of it sent, or Modesto PD can.
P. HARRIS: Did you request a copy of that?
BOYER: No, sir, I didn't. He was working for Modesto PD and I told them they could request that through CARDA if they wanted a copy of it.

>>>>>>>>>>>>>>>
For the people that are under, in my chain of command, being Ms. Eloise, Ms. Anderson, yes, I'm responsible for making sure that she writes a report and it goes through our chain of command. Mr. Seitz is actually on mutual aid to me, so I have no control over him other than to direct him where to search and that. His reporting structure goes through the state. It doesn't go through me. So he has his own reporting structure and his own procedures to provide those reports.  Just like, although I wrote reports, detectives from Modesto PD had to request them through my department
……………
Christopher Boyer: I instructed the detectives there that they could ask for a copy of the report through CARDA, and I gave them the contact information that they could call for that
>>>>>>>>>>
Seitz Trial Testimony

GERAGOS: At some point later on, were you interviewed by an investigator named Carl Jensen employed by me?
SEITZ: Yes, I was.
GERAGOS: Okay. After you were interviewed by Mr. Jensen, did you then get interviewed by somebody from the District Attorney's Office?
SEITZ: Yes, I did.
GERAGOS: Okay. When you were interviewed by somebody from the District Attorney's Office, did you tell them that when they read you, who was that, by the way?
SEITZ: Mr. Harris and another Assistant Investigator from the District Attorney's Office.
GERAGOS: Okay. Did they tell you at that point, or show you a report by some other Modesto PD officer?
SEITZ: There was a question with regards to the scent article that I used. It was back from 2002. And in trying to recall, with items of both articles, and I had recalled during the debriefing that a Modesto officer had interviewed me, and I provided a narrative report, to which I recalled that he did write down the scent article that I used. I mentioned that in the meeting with the District Attorney, and they went back to a binder, and they were able to locate a report that was prepared that day, or narrative from the officer that was there.
GERAGOS: When you say that day, do you mean the 28th of December?
SEITZ: Yes. I would assume it would be. I don't know when the report was actually written. But it was from the 28th
>>>>>>>>
HARRIS: And you also talked to a defense investigator sometime between the time that the trial started and when I talked to you?
SEITZ: I talked to, that would have been in March when I talked to Carl, yes.

 

Cadaver Dogs

 

December 27, 2002, Anderson working with cadaver dog Twist (summary from Anderson's Pre-Trial testimony)

December 27, 2002 Search Effort at the house, Park, and warehouse (Summary from Boyer's Pre-Trial Testimony)

Searches not requested

Discovery Issues Raised with Anderson's PreTrial Testimony about Twist

Mark Geragos: Wait a second. I know this is not my witness. I have a real problem with this. I was told I had all the discovery. They now
come up, because the report clearly says there was no alert. He obviously knew that. He was asking that question, by virtue of how he
asked it. That's completely objectionable. It's prosecutorial misconduct. I should have made the prediction this morning. I was
going to, when I bit my tongue. I will never do that again, that, I guarantee you that it's not going to be, I was going to give an over-
and-under of one day before I got new discovery. Here it is, took the over-and-under, less than an hour. He knows what he was going to have this witness testify he then puts this witness up on the stand. It's not contained in a report. He asked the questions. This was not a
surprise. This is totally improper. It's prosecutorial misconduct. Move to strike this witness's entire testimony.
David Harris: Your Honor, we communicated,
Judge Delucchi: Wait a minute. Wait a minute. Did you give Mr. Geragos her report, if any, or any reports pertaining to what she was
going to testify to?
David Harris: Yes, he has that. And he also has Detective Hendee's report at Bates stamp page 2212A, where he specifically says he was.
Anderson advised me the dog hit on only one area in the warehouse.
Judge Delucchi: Do you have that?
Mark Geragos: Yes, we, there is nothing what she just testified to, nothing as to what he's asking her about. If he had that, he should
have given the notes. You have a continuing discovery order in this case. For him to elicit on the stand is improper, and he knows it.
Judge Delucchi: Well, you can't vouch for everything that a witness is going to say.
Mark Geragos: That's why,
Judge Delucchi: You were aware of the fact that she just got done saying he couldn't base an opinion, because of the dog was alerted
because of the chemical smells. Is that what the report says?
Mark Geragos: Yes. And what he's now saying is inconsistent with what the report says. And this is not, you don't, I specifically said
that, and phrased this in terms of the vouching issue, what you just mentioned. If a witness says all of a sudden out of nowhere in
response to a question, oh, I just remembered that, fine, that comes out. That happens every day to every witness. When he knows he's
going into it, what he's going to ask her, and then draws out that information, and then it isn't contained in a report, he doesn't
alert us first, that is misconduct. That's a discovery violation.
David Harris: And that's not correct. Counsel can speechify all he wants. It is in the report what the did detective said the witness
said. He has the witness's report. He's already said that he was attempting to look at that particular area. So that's questioning
that we're going to ask this particular witness, that's something that is basic lawyering. And we resent the fact that when something
doesn't go Mr. Geragos' way, he accuses us of misconduct and hiding the ball from him.
Mark Geragos: The prosecution has committed nothing but misconduct in this case. That's reason I accuse them of it. This is misconduct if
they know that this witness, when they put her on the stand, is going to say something that deviates materially from the report, they have
a duty to turn that over.
Judge Delucchi: Well, where is it materially deviating from the report?
David Harris: It isn't. We have reports of the detective.
Mark Geragos: She showed, I'm reading,
Judge Delucchi: Go ahead.
Mark Geragos: She showed mild interest but no alerts. That's her report.
Judge Delucchi: Okay. She just got done saying,
Mark Geragos: But she did not go into full alert. She's just
testified, and that's not,
David Harris: That's not the end of the statement either. She demonstrated frustration by barking, but did not go to her full
alert, or pinpoint the particular spot, which is what the witness just testified to.
Mark Geragos: I would invite the Court to have the transcript read back, because precisely what he was asking,
Judge Delucchi: I'm going by my notes. Mr. Geragos, with all due respect, I think you are overstating it. I don't find any misconduct.
It's an inference from the evidence that's right there, and that's what she was saying. She just said that she couldn't base an opinion
because of the amount of chemicals that the dog, that the dog alerted on. That's substantially what that is.
Mark Geragos: If that's the case, I ask the entire testimony be struck as to the warehouse.
Judge Delucchi: Overruled.
Mark Geragos: She's saying there is chemicals in there, that can't base an opinion. Why we listening to her opinion?
Judge Delucchi: That's the question for me to sort out as to what part of this evidence is coming in, and what part isn't coming in.
First of all, there has to be some materiality to the evidence, right? It has to have some probative value, and that's why we're
having this hearing. And I think that's my role up here to sort out what has probative value and what doesn't. He can put on whatever he
wants in this case, and then you guys can pursue it on cross. Then it's up to me to decide what's going to come in and what isn't, if
anything. So anyway,
Mark Geragos: Thank you.
Judge Delucchi: Thank you, Mr. Geragos. I thought we could make it all the morning, but we didn't, right? No harm done. That's your job.
Go ahead.

 

 

Water Cadaver Dogs

 

Items from various testimonies:

 

December 28, 2002 Search effort at the Berkeley Marina involved both K-9s and water cadaver dogs.

SEITZ: I have been a mission ready dog handler since 2001. Began training a dog in 1999. Prior to that with CARDA, I was a Tech
Support Person starting in 1996. And I have been with the Alameda County Sheriff's Office in a volunteer position since September of 1976. 28 years.
GERAGOS: Okay. When you were called out, who called you out to the Berkeley Marina?
SEITZ: I responded as CARDA as a mutual aid request for Berkeley Marina to the assist the Contra Costa County Sheriff's Office. I responded with two other dog handlers that were dispatched there to do boat searching. I was there in support of them.
>>>>>>>>>>
GERAGOS: Okay. The, specifically the, I guess when you got there, you talked to somebody, is that correct?
SEITZ: I met with, there was a briefing in the morning with the other two dog handlers that were present there for the water searching, which I was there with. We met with the two officers from Modesto Police Department and Chris Boyer, who was there from the Contra Costa County Sheriff's Office.
GERAGOS: When you met with them, were you told various things, or various scenarios?
SEITZ: There were some. The issue was at first focused on boat searching for two handlers that went out. And I just attended the briefing. There was some discussion about some probable scenarios, and they were going to dispatch the two water search dogs out on boats that morning to try to search some of the area around the marina.
>>>>>>>>>
HARRIS: Okay. So you finished working. Did you leave?
SEITZ: No.
HARRIS: You're not working but you stay around?
SEITZ: I put my dog in. My wife was out on the other boat as a dog canine handler, and I waited for her to arrive back to base after they finished their boat searching.
 

January 4, 2003 Search Effort at other bodies of water

News media reported that "10 dogs searched along part of the California Aqueduct and along waterways and land near Highway 132 west of Modesto."
 

Some media also reported a hit at the Berkeley Marina, though this was not mentioned in the Trial: 

"One of the teams detected that there might be something to look for and we at this point don't know if it's substantial. We've got the divers here and we'll go ahead and use them and check out the spot," said a spokesman from the Berkeley Police Department.

January 5, 2003 - Other waterways searched

Search teams were sent to Merced, Tuolumne, Calaveras, San Joaquin, Alameda and Mariposa counties. Besides scouring new areas outside Stanislaus County, approximately 16 officers and five dogs took a second look Sunday at several areas within the county that previously had been searched.

 

January 13, 2003

Gene Ralston was asked to use his sonar equipment to search under the bridge at Lake Tulloch in Toulomne County.  A water dog alerted there, but all Ralston found was a garbage bag of deer remains. 

 

Ralston also searched under a bridge spanning New Melones Lake were other water dogs had alerted.  Ralston did find something, apparently a large plastic bag, but it was anchored to the bottom at a depth of 300 feet.  Ralston was unable to recover the bag.  Based on images from other searches for Russian Mafia victims, Ralston discounted the find as Laci. 

 

Ralston reportedly searched an area between buoys 3 and 4 in the Chevron shipping channel because water dogs had alerted there.  Ralston theory

 

 

Defendant's Motion to Exclude Dog Evidence

 

Defendant's Motion to Exclude Dog Evidence in Preliminary Hearing, October 7, 2003

 

Arguments & Ruling  Transcript

 

Mark Geragos: The Court I think cannot allow any of the dog tracking evidence in, period. There is three cases, the cases I'm sure the Court has read several times. I think that in our moving papers I went back and reread the cases myself. I think in our moving papers we have misstated. I think that we had indicated in the moving papers that two out of three cases, which were the Malgren and the Gonzales where the dog tracked to a suspect. When I went back and reread the first case, Craig, it appeared that what they did in Craig, they took the dog to the car where the car was stopped, and then they tracked, and it went to the point of detention. So that the point of detention, as the Court will remember from the factual summary in the Craig case, is where they had actually taken the purported victim or complaining witness to identify the two of the three persons. So in all three cases, what you had was a tracking that was in less than an hour after the event that led to a specific suspect. Now, if you have -- those are only three cases that -- Court of Appeal cases that said you can use this kind of evidence. In two of those cases, one of them, they threw it out all together. The last, Gonzalez, which is the most recent case. The other two cases the Court struggled mightily with even allowing that in. The Court said in a situation where, no matter how much machinations the Court went through in the one case, where the dog was in the house within 25 minutes of the burglary, and then goes through the field seven tenths of a mile later, when the guy has got some wet pants, and they find a couple other items. And the Court's going back and forth struggling with whether that should be allowed in, and then it allows it in, but subject to a jury instruction that says you have to use the utmost of care.

Judge Delucchi: And corroboration.

Mark Geragos: And corroboration. And you can't use that old saw that because they found somebody, therefore there is corroboration. Here, what do you have? We have a contaminated scene. Clearly we have got Boyer's testimony that he's moving people out of the street, news media out of the street. We have got previous testimony that on the day of the incident the police cordoned off the house, that there was a number of people that had gone in and out of the house, including the police. We know for a fact that days had elapsed. We know that we have got a complete conflict in the testimony as to the scent article. We have one woman saying that she pulled it out. We have got Boyer saying he pulled it out. There is no dispute, at least from Eloise Anderson, that when she pulled it out she used the same glove that would have been from my client. We have a dog that goes to the middle of the street and then stops. We have no testimony or no foundation whatsoever for vehicle trailing in this state. If you were to allow anything in the way relating to vehicle trailing, if you would have specifically gone beyond the three published cases, two out of those three cases talk about the fact that you can allow it in in a situation where the trail has not reached a point where somebody would have left in a vehicle, because there is no evidence that that is something that is going to be helpful to a jury. If anything, it's more prejudicial than probative. And it's -- frankly, it's complete voodoo as Mr. Harris had indicated. The idea that you are then going to allow 10 or 11 days to elapse, and you are going to have dogs alert, or not alert, or follow somewhere along the highway. In the two cases, the first two, Craig and Malgren, they had testimony, not just from the handler. They had the person who trained the handler, Mr. Outman, who testified in both cases. Mr. Outman testified that they had -- those dogs had trailed in the situation such as that a hundred percent of the time. Here we have got, at best, fifty percent, and she's done two. And she doesn't have any training records for the two months between the time that there was a failure of one, or at least a failure of memory on her part, at the seminar. And then the next thing she does is a tracking.

Judge Delucchi: Talking about Merlin now?

Mark Geragos: Right. The other cases you have got in the published cases, you have got weekly training runs. You have a trainer coming in and saying that that dog was good and that it had performed admirably. If you let this kind of evidence in, it is the worst speculation in a capital case. In fact, as I sat here and listened, it reminded me. I used to be an anthropology major in college. We used to study the Congo. There was a certain tribe that had a shaman that used to pump a divining rod. They used to track -- they used to divine the jackal tracks. That, to me, makes a lot more sense than what we heard testified to here. It was complete and utter nonsense. The vehicle trailing 11 days later that we're out at a pier. A period of time later, if the Court takes a look at the Department of Emergency Services' regulations, the cadaver -- and I think it was one of the exhibits for cadaver testing, they test with a cadaver hanging, they test with a cadaver buried, and they test in an enclosed area, interior area where there is a cadaver part. They don't test -- nobody has ever testified in any courtroom anywhere that you can have somebody trail cadaver parts. That's never been done. It's not certified by the state, yet we're going to let that come in in a death penalty case? Nobody has ever admitted, as far as I'm aware of, vehicle trailing. There isn't a single case that they can cite to where there is vehicle trailing that has been allowed in a courtroom. We're going to let that in in a capital case when we have got three specific cases? And I know that the Court in the --

Judge Delucchi: Got them. The Craig, Malgren, and Gonzalez.

Mark Geragos: Right. I don't know how the Court could let any of this in. There isn't any foundation. It is the worst type of evidence I think that the -- it would -- at some point I almost jokingly, of course, would say, well, judge, let it in, because it's reversible error per se. It would never sustain itself on appeal. But, obviously, you know my feelings about making records. The idea that the Court would allow any of this nonsense in for any reason. There is no corroboration. There is nothing that you can point to that shows that these dogs were trailing any scent whatsoever. Every point that you have got an inability of this dog to go, whether it's three miles south to the warehouse when the dog is led, and next thing you know it goes trailing the opposite way away from the warehouse where it's ending up at the Gallo Winery. There is no corroboration. It is nothing but trial by augury. I would ask the Court to exclude it. I think  that it would be the worst kind of error to allow this in.

Judge Delucchi: Mr. Harris, are you the advocate of this evidence?

David Harris: Yes. Judge, I think first thing that has to happen is the Court has to distinguish some of the things that counsel has been arguing about, which is the question of admissibility versus the question of corroboration that the jury is instructed on. So there are two separate issues about that corroboration. The CalJIC instruction says, 2.16, that's a question for the jury after the Court makes the determination of admissibility. There is a five-step process for the determination of admissibility, if the Court follows Malgren and doesn't follow Craig. Just go through this. Craig is the oldest case. If the Court follows Craig, that particular court said the only requirement for dog testimony is that the handler is qualified and is able to testify as an expert, and that the dog meets the basic reliability, the basic establishment that the dog is able to do what it does. None of these cases, as counsel indicates, really threw this testimony out. They were looking at particular things post-verdict for different issues. If the Court follows Craig, you start moving down the line. As you get to Malgren, Malgren takes Craig, just goes one step further and says let's break it down into a five-step process for admissibility. Not talking about the corroboration requirement that the jury has to decide, because that's an issue. Can there be a conviction based solely on the dog tracking evidence? People don't dispute that. The people don't. Really that doesn't matter at this point.

Judge Delucchi: That's a given. You can't have a conviction just based on dog tracking evidence, period.

David Harris: Correct.

Judge Delucchi: That's what the cases all say. Has to be corroborated.

David Harris: That's something we're not dealing with here. The only issue is the five-step process, which is the more stringent under Malgren. The Court has already made the finding as to the first three. The handlers are experienced to use the dog. The dog is trained to track humans. The dog has been reliable in tracking humans. The first three steps are done. The next two steps, is the dog is placed in a particular track, and, five, the trail is not stale or contaminated. So to go through these particular steps, and looking through the cases, when you start with the Craig case, this, again, was a circumstance where the facts in those particular cases kind of prove our point and not prove the defense's point. The dog was taken to a known location. The dogs were able to follow from that particular location to where the detentions occurred. This was a circumstance here where it shows that the dogs are able to identify individuals, multiple scents, follow from locations and get to a particular point. There was no other evidence other than that. Then, later on, they found some property in the vehicle that came from the earlier purse snatch in that particular case. Again Kelly-Frye was not an issue. The court said it really gets down to the expertise.

Judge Delucchi: Kelly-Frye is not an issue in dog tracking evidence. That should be clear.

David Harris: So then you go into the Malgren case. And this is -- really goes to point number five. Malgren is most informative about that particular case. It's also cited in the defendant's points and authorities. The case of People versus Centolella out of New York. Malgren takes the standard and is quoted on page 238, the, five-step process citing to People versus Sands, which is a case out of Michigan. And in that particular case, when they get to that last element, they talk about the trail had not become so stale or contaminated as to be beyond the dog's competency to follow it. So it's a slightly different wording. That's where Malgren comes from. There is no explanation of what stale or contaminated means in California. So we have to trace, where does that come from. If you follow People versus Sands and People versus Centolella, it cites to the case of People versus Harper. Harper cites to the original case of Centolella, which is the one that the defense has cited. And the quote from that particular case at page 463 shows that the prosecution must show that the dog or dogs were within the period of efficiency. That's all that is required under that particular component, that it's not stale, that it's not contaminated. Now, the testimony that we have in this particular case as to the trailing dogs, counsel makes a big distinction that none of these cases involve vehicle tracks or vehicle trails. They have had the opportunity to bring in their own expert to say that there is -- there is a dispute. There is nothing that's going on that it can't be done. So the uncontradicted testimony at this point in time from the three individuals involved is that there is no difference between that, other than it makes it a little bit more difficult. So we have Miss Valentin, Miss Anderson, and Mr. Boyer talking about the ability of doing this. They all testified, in Merlin's particular case, he's certified by CARDA up to 96 hours. Miss Anderson's dog was certified by CARDA up to 96 hours. So we start with what their efficiency level is. So they are certified up to 96 hours. The first track at the house, the second track at the shop,  the third track from the Berkeley Marina, are all within that certified-by-the-state period of time for them to follow a trail. Miss Valentin talks about her dog has run trails up to 14 days. The trail out from 132 out to 580 is within that time period. So, again, if we follow the line of cases that ultimately is adopted by Malgren to set the standard, the dogs here have not done anything outside of their efficiency. They have not done anything outside of the area of their ability. And they were successful in following these particular trails. The defense wants to say this is voodoo, and so on, and so forth. But the circumstances are, when you look at point number four, placing the person on the particular track, in the pleadings the defense said, well, it has to be a guilty party. So, again, they are saying since there is no case that says it can be a missing person, it has to be the suspect.

Judge Delucchi: Going to ask you that. Is the fact that we're looking for a missing person rather than a responsible person, do you think that that's a distinction without a difference?

David Harris: I think it is, clearly so. Because, based on the testimony and the evidence presented to the Court, the dogs don't know the difference in terms of, is the person guilty or is the person innocent. They only know that they are given a particular scent, and that's what they are supposed to follow. In this particular case we think it's actually more helpful and proves more towards the admissibility of the evidence because, unlike in the Malgren case where the individual that's involved runs out the back door, and the scent that they are using is from the -- is from the pillowcase -- trying to remember which. I'm sorry, that's the Gonzalez case. In the Gonzalez case, it's two individuals in the house. A pillowcase ends up down the hallway. They scent off of the pillowcase in that particular case. They have the pillowcase. The evidence is testified to at that particular trial that it belongs to one of the residents of the house, but the dog is able to follow the scent off of that pillowcase down the track and ultimately to the person that's hiding down in the weeds.

Judge Delucchi: Let me ask you something else. Would the fact that the tracking dogs in those cases actually came to a human being, do you see any difference between that and the situation where the dogs here could not actually find anybody?

David Harris: I don't think it makes a legal distinction because, again, what you have is, you have the dog's ability, which is parts of one, two, and three. They have been proven reliable. So that's really what the testimony is. And it comes back to Craig, which is the expert testimony saying I'm interpreting the dog's movements and, abilities and they are on the trail. And ultimately, if you really look at this, and you put these pieces together as Captain Boyer was saying, the dog tracks away from the house using the bowling alley example, where they work the entire front of the property. They know that the dog picks up on the freshest scent. Under any theory, either the defense theory or the prosecution theory, Laci Peterson left that house. She left the house either on foot or in a vehicle. She had to cross the front of that particular house, unless the Court wants to imagine that this almost-eight-month pregnant woman jumped the back fence. The dog was started in the place where the circumstances indicate that the person was at. The dog picked up that scent and started to follow. Now, the defense makes --

Judge Delucchi: Interrupt again. I'm going to ask you. The dog picks up the freshest scent. Is there any way of determining when Miss Peterson could have left that scent? Could it have been the 23rd, the 22nd, the 21st?

David Harris: Again, based on either of the theories, if the Court were to accept what the defendant's statements to the police were, that she left to go to walk her dog in the park, we know when that was - - had to occur. If it's what the people's theory is, that she was driven away by the defendant, both of those occur basically at the same time within, that same time period that he says. So we have the starting period of when it occurred. The dog tracks and indicates that it's following a vehicle trail. Miss Valentin has testified that she has followed vehicle tracks before, vehicle trails, and recognizes what the dog is doing. Now, if the Court takes that as testimony that they did on the 132 track where they do a discontinuous trail, you pick them up, you move to another point. They did that later on with Merlin. They moved to the warehouse. The defense makes the big issue about the corner of Kansas and Emerald, the dog going the wrong way. But as the Court pointed out, to me, the dog was not trained to find the warehouse. The dog was finding the freshest scent, which was going away from the warehouse. When it goes to 132, that particular trail continued all the way out to 580, ultimately to the Berkeley Marina. The dog track at the Berkeley Marina then goes from one of the two entrances in the marina down to the very end of that particular ramp. And as Miss Anderson says, her dog being scented on Laci Peterson goes to the end of that boat ramp and gives her the end-of-the-trail signal. The testimony is, and the evidence before the Court is, that Laci Peterson's body was found within two miles of that particular location. If the dogs could have swam that distance, we might not be debating the question of whether the dogs had found somebody at the end of that trail. But the Court can take judicial notice of the fact of the  distance from Modesto to the Bay, and that's a long way for the dogs to go. And they seemed to have made it in the right direction where Laci Peterson ultimately ended up at. So I think, under the circumstances, it's -- clearly step four and step five are met, and we're getting into the question of corroboration for the jury on their reliability, which is not one of the five prongs. If we take the defense argument that there is contamination with the glove, that is disproven by the very facts in this particular case. Both Miss Anderson, Miss Valentin, and Mr. Boyer said the one thing that would happen, if there was any of this contamination issue as to the scent item, not to the trails. Because everybody said there was no contamination as to the trails. They weren't stale, within their abilities. If the defendant had touched those items, or somebody had touched this item and then touched those items so it's the defendant's scent, the dogs would have gone to the freshest scent, and they would have gone to the defendant sitting in the house at the time that they ran this trail. And the Court has the best evidence of these dogs' ability, and refutes what the defense says about not being able to track the defendant or a person in the vehicle, is what Officer Applegate testified to on Thursday, that he's out there. He doesn't believe much in these dogs, but he says Eloise, as he described her being dragged up the him by that dog. So we have the circumstances, again, where the dog is working the trail. That particular dog was scented on the brown slipper that day. So Trimble is being pulled down the path on the defendant's trail. He comes downwind of the defendant who drives out to that location, and he turns and is going up the onramp. The dog indicates where the defendant had just been, according to the testimony of Officer Applegate. Under those circumstances, we do have corroboration of those dogs' abilities to find the particular person that they are scented for. The last step with regards to the cadaver dogs. The cadaver dogs are -- the only one, Twist, in his search at the house, the warehouse, is the only one that's operating outside of his area of efficiency or proficiency, depending on the cases or the language used from the other cases. Miss Anderson said that she initially tells the officers that it's an alert based on what the dog does. But as she steps back and looks at it, because she had never worked in that particular environment before at the warehouse, she has to say it's more of an interest. She won't say it's a full alert because of the chemical smell that's in the warehouse. Again, that's the only one that's even close to being that issue of potentially outside of the dog's ability or efficiency. So, overall, for the admissibility we have clearly the dogs' education, training, the first three prongs. The trails were not stale or contaminated within the language of the cases, because it's within their parameters of training, and that there is no issue of them being placed on the place where the person had been, because, again, assuming that -- using the people's particular theory, Miss Peterson was driven away from the house. That's what the first track shows. The defendant says he goes to the warehouse, picks up his boat. The track goes away from the warehouse again. We know she's there. They work the front of that warehouse. He goes to the marina. Miss Anderson said she works one side of the marina. She works the other side of the marina. The dog goes down to the end of the boat ramp, and scent does not return. That particular dog was scented on Miss Peterson. There was no contamination, because otherwise the dog would have come back up the ramp and out the road following the defendant home if the dog was scented on him. He gives the end-of-trail, because he could not go any further. I think, for admissibility purposes, we have met our threshold, and it's also only a probability standard that we have to meet for admission. So with that, people would submit it.

Judge Delucchi: Do you want to respond, Mr. Geragos?

Mark Geragos: Yes, I want to respond. I can't even believe I'm sitting in a courtroom in the year 2004 listening to this nonsense. We have three cases. Where does he get there is no stale or contamination? There isn't a single case that you can cite me that allows for a dog trailer to come in on 24 hours, let alone 48 hours, let alone 72 hours. There is no certification from CARDA for vehicle trailing, period. They can't point to it. There is none. This is not a dog tested for proficiency, yet she has got the dog running all over town, going right, left, and everywhere else. You have here a perfect example of how desperate this prosecution team is in trying to get this nonsense into a courtroom. There is nothing. When they say there is no stale or contamination, the very first place the dog goes to is the location where the media is encamped. And, guess what happens? It loses the scent. Guess why? Because the street has got nothing but satellite trucks and people walking out in front of it. And it's three days later. And there is no way a dog can trail anything at that point, because you have got a virtual encampment in front of the place. Then what do they do? They take the dog zigzagging through Modesto, and it ends up at the Gallo plant. His answer to that -- he has no answer to that. The dog doesn't know what it's trailing. We don't know what the dog is trailing because, as the Court's said there is no body. There is no human. There is nothing there to test it. It could I have been scenting the Cabernet. We don't know. The dog turns around and goes to the storage shed. They don't go into the storage shed. We don't know what the storage shed is. He claims that he was going ahead also towards the warehouse. He's not going anywhere. You might as well just play pin the tail on the donkey here for  what we have got in a capital case. Give me one case, one single case. He goes through a genealogy that is the most tortured logic I think I have heard in recent times, where he wants you now to just ignore Craig, ignore Malgren, ignore Gonzalez, and started talking about one string cite for a case that, by the way, has nothing to do with vehicle trailing, where there was somebody who was found. The case that he cites, every single one of these cases, there is somebody who is found. It is a suspect. It is contemporaneous. It's not four days later. It's not some woman who fails with her dog one out of two times. We're going to -- let's see if we can get her to do it, is her expertise in a capital case. This Court cannot, under the existing case law, allow any of this into a capital case. Besides the corroboration, we can't even get past stale or contamination. There is nothing here. When he says if the dogs could swim, apparently he stepped out of the room when he had his witnesses testifying that there were water dogs out there. They took the water dogs out. There was nothing. So the idea that four months later they find Laci Peterson and Conner's bodies two miles away at that point. Only the deaf and dumb didn't know where they were searching and where Mr. Peterson was that day. That doesn't give you any corroboration. This whole -- this exercise is nonsense. It's utter nonsense. I would ask the Court to exclude it. There is nothing here that is admissible. There is nothing here that meets the caselaw, threshold definition. And this is the worst kind of evidence, as all of those cases cite, that the Court has to handle with great care. And to allow this in in any way, shape, or form I think is reversible, per se.

David Harris: Just briefly in response. That particular comment by the defense that this is the worst kind of evidence, that was rejected in each of those three cases. And, in fact, when they were asked about the type of corroboration that needs to be required, they said there is no problem with dog tracking evidence like there is accomplice evidence. There is no motivation behind it. So, again, the defense always comes back to the corroboration, which is a jury issue. That has nothing to do with the admissibility. And the --

Judge Delucchi: Well, I think the Court has to make a finding there is some corroboration before I let it go to the jury. I think under 402 I have to make that finding.

David Harris: If the Court -- your Honor looks at corroboration, again we have -- in this particular case, we have the corroboration of these dogs' ability, based on the defendant's own actions and his own statements as to saying where he was, where his wife was, and, in fact, being seen by Officer Applegate, having him come up to him. The defense, again, makes this big issue of contamination out at the scene. But there is no contamination. That was testified to by Miss Valentin, that she was able to find the track, and the dog was able to trail it. And, again, we're only dealing with the probability, which is the standard for admissibility for this particular evidence. And I think that's clearly been met by the testimony. The corroboration is something for the jury, as CalJIC 2.16 says.

Mark Geragos: Judge, the example about Applegate, because it's contemporaneous. That's the whole issue. That proves the point. The point is, is that if the dog has any skill whatsoever, it is within a contemporaneous time period. The idea that somebody drives up, the dog is fifty yards away. It's been scented on an article. That person drives up and is within fifty yards, has a conversation, and the dog goes to that location, fine. That's within 15 minutes. That fits within the caselaw. They want to admit that particular piece of evidence, that would stand, that would pass muster. None of the rest of this does. All of the rest of this, on every single point, whether it's the dog at the warehouse, so-called cadaver dog, which is not testing what CARDA certifies, whether it's the dog that loses the trail in the middle of the street where, just coincidentally, there is a media mob, whether it's the dog that runs away from the warehouse, whether it's the dog that ends at Gallo, the dog that ends at the storage warehouse, it is nothing but a sophisticated playing of games with somebody out there, and that dog doesn't know what the heck it's doing. Why that, at any point, meets a threshold 402 is beyond me, I don't see. How is that possibly probative to anything?

Judge Delucchi: Okay. The Court is ready to make ruling. First of all, the Court's read and considered the authorities, and the Court's reviewed the evidence in this case. And I have to say that the dog tracking evidence at best is iffy. Whether or not this is a capital case, or any other kind of criminal proceeding, the Court has to be very careful in admitting certain types of evidence. All the cases that are cited had to do with tracking perpetrators, not a missing person. However, I agree with Mr. Harris, this is a distinction without a difference. But in examining the evidence in this case, there is a few problems. First of all, you can't cross examine a dog, so some of this is conjectural or speculative. First of all, the evidence, with one exception, in the Court's opinion, the evidence in Modesto, listening to the testimony, the Court finds that it's contradictory. I think some of it lacks a certain degree of certitude with respect to the testimony of the dog handlers with respect to the results of the dog tracking. And the Court finds that to be inconclusive. I'm not persuaded that any of that evidence, or any of the evidence that was presented by the dogs and by the handlers in and around Modesto can be sufficiently corroborated to let the matter go to the jury. But I said there is one exception, and I think the one exception to this. Before we get into it with specifics, in the cases that I have read, they talk bout you have to corroborate the dogs -- the evidence presented by the dog. You need something to support the accuracy of the inferences drawn from the dog tracking evidence. And that's People versus Gonzalez. The need for corroboration of dog tracking evidence is to ensure it is substantiated. Now, the only evidence that I think that really should be submitted to the jury in this case is the evidence that took place at the Berkeley Marina. And I'm going to tell you why right now. First of all, the dog Trimble here, and in reviewing my notes, and so forth, has detected scent up to six days old. Also, the dog Trimble was certified for 96 hours. And in reviewing my notes, the dog Trimble was scented by Miss Anderson on December the 28th at the Berkeley Marina. She testified that the dog's head was level, gave evidence of trail at the marina that ended at the end of the pier with the water at a pylon. So we have a scent, ostensibly the scent of Miss Peterson at the marina. This is a question now for the jury to decide; but the corroboration that the Court finds is that within months, the body of Miss Peterson and her young son were found washed up in the Bay. And the evidence is that this is two to two and a half miles from the marina. So now we have independent corroborating evidence of the dog trailing at the marina, because bodies were actually found in the water, or washed ashore within a few months, within two and a half miles from the marina. The Court's of the opinion that this evidence by Trimble that was indicated, or drawn out, or shown to have occurred at the Berkeley Marina, I think there is sufficient supporting corroborative evidence for that evidence to be admissible. With the rest of it, it's very iffy to admit it. So the Court's going to rule that the only dog tracking evidence that the Court will allow in this particular case is the dog tracking evidence by Mrs. Anderson and Trimble that took place at the Berkeley Marina on December the 28th for the reasons I stated. I think that that evidence has sufficient independent corroboration. Plus the fact that the defendant admits that he went to the marina, and that also corroborates the scent of t he dog. There is -- the inference the jury can draw is that Miss Peterson somehow or other was at the marina on or about the day she disappeared. The rest of this evidence I feel, for the reasons I have given, is difficult for corroboration. I think it would be foolhardy for the judge to -- for the Court to admit that evidence inn this particular case, because it would be injecting a cancer into the record. So the Court's going to find under 352 that the evidence, with the exception of the dog tracking evidence at the Berkeley pier, would be too confusing to the jury, would require an undue consumption of time compared to its probative value. So the evidence -- all the dog tracking evidence will be excluded with the exception of the dog tracking evidence that took place at the Berkeley Marina by Trimble and Miss Anderson for the reasons I have stated. And that's the Court's ruling.

Mark Geragos: Thank you, your Honor.

David Harris: Just for clarification of counsel, the one with Officer Applegate was not corroborative?

Judge Delucchi: That's out too. That doesn't clear up anything.

David Harris: Is the Court including Twist, the cadaver dog, in this as well?

Judge Delucchi: All I'm stating is Trimble, I feel comfortable with that you have independent corroboration. Like I said, you can't cross examine the dog; but without repeating the testimony, the dog, as my notes said, when Miss Anderson scented Trimble at the marina, that the dog had its head level, it gave evidence of a trail at the marina that ended at the edge of the pier at the water's edge with a pylon. And then the independent corroboration that doesn't need a big stretch is that the bodies were found months later, two miles away from that area. So, to me, I'm comfortable with letting that evidence in. And, plus the additional fact that the defendant has admitted that he was there. So all this other evidence is going to -- not going to come in. But there is no issue in this case that Mr. Peterson drove from his residence to the marina on the 24th. So I don't think letting that other evidence into the game is worthy of the gamble I would be injecting a cancer into this case that doesn't have to be there. And being cautious, whether it's a capital case or another type of case. That's the Court's ruling.

David Harris: Thank you.